The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DIRECTING THE CLERK TO SUBSTITUTE WARDEN FRANK X. CHAVEZ AS RESPONDENT PURSUANT TO FED. R. CIV. P. 25(d) FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS THE PETITION (Docs. 12, 1) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter has been referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. Pending before the Court is Respondent's motion to dismiss, filed and served on March 4, 2010. On May 27, 2010, Petitioner filed a document entitled as a traverse (doc. 19) that by order filed on June 3, 2010, was deemed by the Court to be an opposition to the motion to dismiss. Respondent filed a reply on June 8, 2010. The matter has been submitted to the Court without oral argument pursuant to Local Rule 230(l).
I. Order Directing Substitution of Warden Frank
This Court has a duty to raise the issue of jurisdiction sua sponte. Smith v. Idaho, 392 F.3d 350, 354 (9th Cir. 2004).
Title 28 U.S.C. § 2242 provides that a petition for writ of habeas corpus shall allege the name of the person who has custody over the applicant. Rule 2(a) of the Rules Governing Section 2254 Cases in the District Courts (Habeas Rules) provides that if the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody.
The respondent must have the power or authority to provide the relief to which a petitioner is entitled. Smith v. Idaho, 392 F.3d 350, 355 n. 3 (9th Cir. 2004). A failure to name the proper respondent destroys personal jurisdiction. Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, objections to a lack of personal jurisdiction, including the requirement of naming the technically correct custodian under § 2242 and the Habeas Rules, may be forfeited or waived on behalf of the immediate custodian by the relevant government entity, such as the state in a § 2254 proceeding. Smith v. Idaho, 392 F.3d 350, 355-56, 356 n. 4 (9th Cir. 2004) (where the state conceded it had waived lack of jurisdiction over a petitioner's immediate custodian and submitted itself in his stead to the jurisdiction of the federal courts).
Further, the Court has the discretion to avoid delay and waste of the resources of the Court and the parties by recognizing a waiver instead of requiring formal amendment of the petition by the Petitioner. Id. at 356 n. 6.
Here, Petitioner initially named the California Department of Corrections and Rehabilitation and various prison staff members as Respondents. (Pet. 1.) However, in the motion to dismiss, Respondent identifies the proper respondent as Frank X. Chavez, who acts as warden at Sierra Conservation Center (SCC), where Petitioner is housed. (Mot. 1 n. 1.) Further, it is stated that the answer and motion to dismiss are filed "on behalf of Warden Chavez, who requests that the Court substitute him as the sole respondent." (Mot. 1 n. 1.)
Respondent requests that the substitution occur pursuant to Fed. R. Civ. P. 25(d), which provides that a court may at any time order substitution of a public officer who is a party in an official capacity whose predecessor dies, resigns, or otherwise ceases to hold office.
The Court concludes Warden Frank X. Chavez, Warden of SCC, is an appropriate respondent in this action, and that pursuant to Fed. R. Civ. P. 25(d), he should be substituted as Respondent.
Accordingly, it is ORDERED that Frank X. Chavez, Warden of Sierra Conservation Center, be substituted in place of the California Department of Corrections as Respondent.
II. Motion to Dismiss after Expansion of the Record
It is by way of a motion to dismiss the petition that Respondent argues that Petitioner has failed to state a case or controversy cognizable pursuant to 28 U.S.C. § 2254. Respondent argues that Petitioner has failed to establish a basis for habeas relief because Petitioner's allegations do not concern the fact or duration of his confinement.
The filing of a motion to dismiss instead of an answer was authorized by the Court's order of January 4, 2010, which referred to the possibility of Respondent's filing a motion to dismiss and set forth a briefing schedule if such a motion were filed. (Order, doc. 7, 2.) Although the Supreme Court has characterized as erroneous the view that a motion pursuant to Fed. R. Civ. P. 12(b)(6) is appropriate in a habeas corpus proceeding, Browder v. Director, Ill. Dept. of Corrections, 434 U.S. 257, 269 n. 14 (1978), it is established in this circuit that the filing of a motion to dismiss is expressly authorized by Habeas Rule 4. Habeas Rule 4 Advisory Committee Notes, 1976 Adoption and 2004 Amendments; Gutierrez v. Griggs, 695 F.2d 1195, 1198 (9th Cir. 1983).
A federal court may only grant a state prisoner's petition for writ of habeas corpus if the petitioner can show that "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A habeas corpus petition is the correct method for a prisoner to challenge the legality or duration of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (quoting Preiser v. Rodriguez, 411 U.S. 475, 485 (1973)); Advisory Committee Notes to Habeas Rule 1, 1976 Adoption.
Habeas Rule 7 permits the Court to direct the parties to expand the record by submitting additional materials relating to the petition and to authenticate such materials, which may include letters predating the filing of the petition, documents, exhibits, affidavits, and answers under oath to written interrogatories propounded by the judge. Habeas Rule 7(a), (b).
If, upon expansion of the record, the Court perceives that a defect not apparent on the face of the petition may preclude a hearing on the merits, then the Court may proceed to determine a motion to dismiss. Hillery v. Pulley, 533 F.Supp. 1189, 1196 (E.D.Cal. 1982). In Blackledge v. Allison, 431 U.S. 63, 80-81 (1977), the United States Supreme Court suggested that summary judgment standards should be used to test whether facially adequate allegations have a sufficient basis in fact to warrant plenary presentation of evidence. The Court noted that expansion of the record in a given case could demonstrate that an evidentiary hearing is unnecessary, and the Court specifically advised that there might be cases in which expansion of the record would provide evidence against a petitioner's contentions so overwhelming as to justify a conclusion that an allegation of fact does not raise a substantial issue of fact. Id. at 81. In such circumstances, the petitioner is entitled to "careful consideration and plenary processing of (his claim,) including full opportunity for presentation of the relevant facts." Id. at 82-83.
Summary judgment standards were likewise applied in Hillery v. Pulley, 533 F.Supp. 1189, 1197 (E.D.Cal. 1982), where the Court stated:
The standards under Rule 56 are well known (footnote omitted). To paraphrase them for purposes of habeas proceedings, it may be said that a motion to dismiss a petition for habeas corpus made after expansion of the record may only be granted when the matters on file reveal that there is no genuine issue of material fact "which if resolved in accordance with the petitioner's contentions would entitle him to relief... (citation omitted). Only if it appears from undisputed facts... that as a matter of law petitioner is entitled to discharge, or that as a matter of law he is not, may an evidentiary hearing be avoided." (Citation omitted.) 533 F.Supp. 1197.
In the present case, the record was expanded in connection with the motion to dismiss to include facts concerning the disciplinary process and the consequences of the challenged disciplinary finding. Pursuant to the foregoing standards, this expansion of the record may permit summary disposition of the petition without a full evidentiary hearing.
Accordingly, pursuant to Habeas Rule 4, the Court will review the facts alleged in the petition and as reflected in the evidentiary materials submitted by the parties in connection with the motion to dismiss.
In the petition, Petitioner's primary claim is that on August 14, 2007, at KVSP, prison officials violated Petitioner's right to due process of law in connection with a prison disciplinary hearing because 1) the evidence was insufficient to support an adjudication that Petitioner engaged in mutual combat with another inmate in violation of Cal. Code Regs. tit. 15, § 3005; 2) the hearing was untimely; 3) a pre-hearing interview of Petitioner regarding the events was not confidential, and thus Petitioner was unable to offer evidence; and 4) requested witnesses did not testify in Petitioner's behalf. (Pet. 1-2, 5, 42-44; Mot. Ex. 2, 12.) Petitioner also complains that because placement reviews by classification staff were not regularly implemented, Petitioner was exposed to an assault by another inmate and suffered a denial of Petitioner's right to be protected reasonably from threats of violence from prisoners and guards. (Pet. 7.)
The relief requested by Petitioner is reversal of the disciplinary finding of guilt of mutual combat, expungement of all references in his file, and protection against retaliation and malicious transfer. (Pet. 15.) In an earlier petition filed in state court, Petitioner asked for restoration of ninety (90) days of lost behavior credits. (Pet. Ex. C, 26.)
Petitioner is serving a sentence of twenty-four (24) years imposed by the Los Angeles County Superior Court for one (1) count of committing lewd acts with a child under the age of fourteen (14) in violation of Cal. Pen. Code § 288(a) and three (3) counts of committing lewd acts with a child by force or fear in violation of Cal. Pen. Code § 288(b)(1). (Mot. Ex. 1.)
A. The Disciplinary Violation and Process
The records filed in support of the motion to dismiss reflect that on July 12, 2007, Sergeant M. L. Sobbe reported that on July 3, 2007, at about 7:20 a.m., she was assigned as Facility "C" Correctional Sergeant. (Mot. Ex. 2, doc. 12, 10.) Floor Officer A. Agu of Facility "C", Building number 8, advised via institutional radio that there was a possible cell fight; Petitioner and his cell mate, Ramirez, were involved in mutual combat in the cell. Sobbe reported that in a subsequent interview, Petitioner admitted to being involved in mutual combat with his cell mate, Ramirez, whom he considered to be an enemy. (Id.)
On July 16, 2007, Petitioner was given copies of the rules violation report of Sergeant Sobbe. (Mot. Ex. 2, doc. 12, 10.)
Correctional Officer T. Reyna acted as investigative employee for Petitioner. (Mot., Ex. 2, doc. 12, 11.) On August 6, 2007, Reyna interviewed Petitioner, who when asked, responded that he had no objections to Reyna's investigating the matter. (Id. 14.) Petitioner acknowledged receipt of the disciplinary report, a CDC 115, and a CDC 115A; he stated to the investigating employee that he understood the charge, did not want to make a statement, but wanted two inmates and two correctional staff members present at the hearing. (Id.)
Investigating employee Reyna reported on August 13, 2007, that Sergeant Sobbe informed him that after she had learned there was a cell fight, both inmates were brought up to "C-Program," where they both admitted to mutual combat. (Mot. Ex. 2, doc. 12, 15.) Reyna also contacted and interviewed the two inmate witnesses requested by Petitioner who stated that they did not see or hear anything. Likewise, neither of the staff members ...